Phoenix Jones Case: Is It Really Illegal to Use Pepper Spray to Break Up a Street Fight?

By now you've probably heard that Seattle "superhero" Phoenix Jones was arrested this past weekend for pepper-spraying a group of people downtown. The alleged victims told police they were "dancing and frolicking" and that "they had no idea" why the masked man attacked them, but video of the incident released by Jones tells a slightly different story. The group appears to have been brawling on the street corner when Jones swooped in, thinking he was coming to someone's rescue, and doused the angry mob in pepper spray. Now he will likely be charged with fourth-degree assault, a gross misdemeanor. And that raises the question: Is it really illegal for a citizen to use pepper spray to break up a street fight?

Seattle Weekly contacted three local defense attorneys, briefed them on the details of Jones' case, then showed them the video and police report posted yesterday on Daily Weekly.

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Predictably, the answer to the question of whether or not Jones broke the law isn't a simple yes or no.

According to state law, it is perfectly legal to "use, attempt, or offer to use force" in several instances. Self-defense is the most obvious exception. If somebody attacks you, you have the right to fight back so long as your retaliation is within reason; a slap in the face isn't grounds for gunplay. Equally well-known is the provision that allows you to take a swing at an intruder in your bedroom with a baseball bat if you feel they are committing "malicious trespassing."

There are a few other exceptions, one of which could apply to Jones' case. According to Kim Gordon, a former public defender with 15 years experience in criminal defense, Jones' best bet is that:

"A person is entitled to act on appearances in defending himself or another, if that person believes in good faith and on reasonable grounds that he or another person is in actual danger, although it afterward might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary."

Incredibly, Gordon says, even if Jones merely perceived that the people he pepper-sprayed were putting someone else in harm's way, then what he did was perfectly legal. But then there's the pesky question of why Jones couldn't explain to the police why he pepper-sprayed women too.

"I am not bothered by the fact that Jones could not explain everything when he was questioned by the police," Gordon writes. "Oftentimes it is difficult for someone who has just been through a stressful scenario to be able to make sense of it all. In fact, I have had often had police acknowledge that they experience this as well."

Two other defense attorneys have their doubts about whether a jury will believe Jones' story, and even Gordon acknowledges that it's difficult to tell from the video whether a fight was taking place before Jones went into hero mode, let alone if anyone was really in serious danger.

David Allen, a criminal defense attorney since 1969, points out that the way the law is worded, the jury must decide whether "a reasonable person" in Jones' shoes would have intervened.

"As long as a reasonable person in same situation, knowing what you know, believes the person you protected was being assaulted, you get protection from the law," Allen says. "You can defend someone else and be protected even if you make a mistake and jump in the middle of a fight and get it wrong by defending the aggressor. It's sort of to encourage good Samaritans to get involved."

Update 10:34 a.m.: "I didn't say or indicate that I doubted whether a jury would believe him," Allen writes, clarifying his interpretation of Jones' case as it relates to self-defense law, "[The law favors him] if he reasonably believed that persons he defended were in danger."

Jones certainly fancies himself a good Samaritan, but whether anything he does is reasonable is up for debate. That's why Lance Fryrear, a former prosecutor for the City of Lynnwood now working as a defense attorney, suspects that Jones will face "an uphill battle" if his case goes to trial.

"If he's got no one testify there was assault except his belief that it was so, it's highly unlikely a jury will buy into that defense," Fryrear says. "You have to be pretty clear who needs defending. I don't think anyone wants lay citizens walking around doing the police's job breaking up random melees. They're not trained for that."